Elderkin v. Shultz

Scott, J. Jesse Wilson and Samuel Wilson, in the year 1819, executed to one Thomas Hixson an obligation for the payment of 1,193 dollars and 93 cents, payable 120 days from date. Thomas Hixson endorsed and delivered over the said note or obligation to Nathan Hixson. In the year 1821, Naihcin Hixson delivered the said obligation to Elderkin and Hagen, attorneys at law, for collection. In the year 1824, Elderkin compounded and compromised with Jesse Wilson for the said debt, and took from the said Jesse four several promissory notes, for the sum of 366 dollars and 31 cents each, payable in one, two, three, and four years; which notes were made payable to Elderkin, and not to Hixson. Jesse Wilson, at the same time, executed to Elderkin a deed of mortgage for a certain tract of land in Floyd county, as a further security for the payment of the said notes. Elderkin .assigned and delivered over the said notes to Caleb Nezoman, to secure the payment of a sum of money advanced to him by said Nerorrian, and retained the mortgage in his own possession. In the year 1826, Nathan Hixson; for a valuable consideration, executed to Christian Shultz, the defendant here, an instrument of writing, purporting to be an assignment and transfer, to the said Shultz, of all his right, claim, and interest in and to the said debt, describing the nature of the claim and authorising Shultz to collect it. Shultz called on Elderkin, and made a demand of the notes and-mortgage; but Elderkin re [346] fused to deliver them. Shultz filed his bill in the Floyd Circuit Court, setting out "this foregoing facts and praying relief. Elderkin, Hagen, and Newman are made defendants; but the bill 'wás afterwards dismissed as to Hagen. The bill charges that Elderkin is insolvent, and that Newman received the notes with a full knowledge of Hixson's right. Newman appeared and answered the bill. Elderkin demurred on the ground that Hiceson was not made a party. The Court decreed that the defendants, Elderkin and Newman, should, within 90 days, deliver "the aforesaid notes and mortgage to the complainant or his attorney,' and pay costs, &c. Elderkin has brought this writ of 'error to be relieved from the operation of that decree. Howie and Nelson, for the plaintiff. Famham, for the defendant. •It is the constant aim of a Court of equity to prevent litigation, and so to settle the rights of all parties, as to make the performance of their decree perfectly safe to those who are compelled to obey it. Mitf. Pl. 144. On this principle it was decided, in a suit brought by the assignees of a judgment, that they could not succeed, because they had not brought the assignors before the Court. Cathcart v. Lewis, 1 Ves. jun. 463. Also, in the case of Knollys v. Alcock, 7 Ves. 563, the Lord Chancellor said, if a question of worth and valuéis to be agitated, the Court will not decide upon it, without every one being a party whose rights can be affected by the decision. In this case, Hixsonhaá, by thccomplainanf’s own showing, an interest in the matters charged in the bill. Had the defendants been compelled to perform the decree, they might nevertheless have been afterwards called upon to answer the complaint of Hixson, whose rights could not be affected by a decision where he was not a party. See, also, 2 Madd. Ch. 142, 143. The demurrer should have been sustained. Per Curiam. The decree is reversed with costs. Cause remanded, &c.